Skydiving Legal Article Suggestions?

[lawrocket 3]

I'm looking at drafting some skydiving-related legal articles to put up here. I've got a couple of ideas, and a couple that have been proposed by others. Things like:

1) Analysis of the skydiving waiver

2) Ownership of skydiving video

3) Liability exposure for instructors

4) Products liability for manufacturers.

I want more suggestions regarding this stuff. What questions do you have regarding general skydiving stuff?

Give me some good ideas for articles. Or even bad ideas.

My wife is hotter than your wife.

[skybytch 273]

Product liability for equipment retailers.

Suggestions for waivers for rented equipment.

Not that I have any interest in either subject

[FrogNog 1]

Indemnity. Which I take to mean a jumper who screws up (lands out, contacts a hazard, etc.) can end up owing people money.

-=-=-=-=-
Pull.

[Jib 0]

Choice of forum, choice of law and other issues for manufacturers of equipment to limit liability, including attorney's fee provisions and frivilousness statutes.

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the depth of his depravity sickens me.
-- Jerry Falwell, People v. Larry Flynt

[rehmwa 2]

Here's a couple stupid ones:

Demo jump stuff (free vs paid for)

If you land off and injure yourself, is the property owner liable

Behavior under sponsorship

Liability of riggers

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[tombuch 0]

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2) Ownership of skydiving video

Include still photography as well as video.

Also, perhaps a discussion of employment Vs. independent conrtactor status with regard to taxes and workers compensation for instructors and packers. I'd like an understanding of why skydiving drop zones consider a "full time" instructor to be an IC, while the same relationship in the ski industry is clearly an employment relationship.

Tom Buchanan
Instructor Emeritus
Comm Pilot MSEL,G
Author: JUMP! Skydiving Made Fun and Easy

[quade 4]

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I'd like an understanding of why skydiving drop zones consider a "full time" instructor to be an IC, while the same relationship in the ski industry is clearly an employment relationship.

Yeah, this has always bothered me as well.

Is it just self denial and they're only fooling themselves (as well as the instructors and state) or is there something subtle I've missed?

Packers I totally understand, if they come and go as they please, setting their own schedules and determining for themselves how best to do their job, but I just don't see how that applies to instructors at most locations.

Hell, even a lot of camera flyers have to follow a "script" in shooting for the students.

quade -
The World's Most Boring Skydiver

[chuckbrown 0]

You're not missing anything. They're just fooling themselves. If a student gets hurt through gross negligence of the instructor, you can bet the plaintiff's attorney will be suing the DZ arguing that the IC was really an employee and therefore the DZ is liable for their conduct. A court won't rely on how the parties characterize their relationship; a court will evaluate their status based on who controls who. If the DZ controls the work of the instructor, he's an employee.

[lawrocket 3]

This is a great point and falls within the liability discussion for instructors and/or DZO.

My wife is hotter than your wife.

[Nightingale 0]

I'd really like to see an article on the IC thing.

As far as I can tell, the DZs are using ICs to avoid paying benefits and health care to their employees, as well as potentially shield themselves from damages.

What would happen if an employee challenged the employer, stating that they are really an employee instead of an IC, and should be classified as such?

[AggieDave 6]

Sexual Harressment for Instructors (male and female).

--"When I die, may I be surrounded by scattered chrome and burning gasoline."

[tspillers 0]

From a DZO stand point. There are several reasons they fall under IC rather than employee.

It is a fine line. From the IRS side. They are an employee if you set their hours or pay on an hourly rate (or salary).

Compare it to an electrition contratced to do electrical at a new home or office complex. They must follow the request of their General Contractor or they may be out of work, much like an instructor that teaches turns contrary to the way the Cheif Instructor requires.

Also employees are not allowed to work for the competition. I do know some DZO's that feel this way about instructors, but in general instructors, packers, and videographers can go from DZ to DZ. In our are it happens quite often that a nearby DZ will request or provide help on busy weekends.

As far as going to court is concerned, the business will be liable to some determined degree for the staffs actions which is one reason most DZ's are some form of a corporation. When we started and I was the only instructor, the corporation was meaningless in this regard. If I take a student and they sue, than can sue me directly as well. The corporation provides me personal protection if another instructed took them but not the Corporation itself.

The the 1/2 cent helps.

Todd

I am not totally useless, I can be used as a bad example.

[Nightingale 0]

from what I've seen, the instructors at the DZs I've been to have pretty set schedules... seems like the DZ is setting their hours to me.

[benny 0]

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It is a fine line. From the IRS side. They are an employee if you set their hours or pay on an hourly rate (or salary).

The use of IC designation for tax purposes can actually be beneficial to both the DZ and instructor if one (i.e., the instructor) takes full advantage of the deductions offered him/her. Although when you consider lack of benefits, potential liability, etc. it's probably a raw deal. But, if an instructor challenged the DZ on this, I'd say the DZ would probably say take it or leave it. If they really pressed the DZ might designate them as an employee and tell them when no students were around they could be taking out the trash, cleaning bathrooms, etc.. Oh well, the pros/cons of the IC in any industry are to numerous for me to continue babbling about here.

Never go to a DZ strip show.

[wmw999 2,588]

Howzabout just a general discussion of individual liability, and what individuals can do (e.g. packers who are impoverished vs. jumpers who own houses and cream someone's cars). Questions that come to mind include what the USPA insurance really covers, what homeowner's really covers, and what your liability has the potential to be if you loan your crummy gear to your bud and it finally malfunctions due to the lines you knew weren't very good.

Wendy W.

There is nothing more dangerous than breaking a basic safety rule and getting away with it. It removes fear of the consequences and builds false confidence. (tbrown)

[tspillers 0]

That is tricky. My staff know when we open. They also no if someone shows up when we open with no work for hours and someone else shows up later. The early bird gets them worm... uh, work.

I obviously can't speak for all DZ's but I have always been careful on this issue.

Most instructors don't want taxes taken out of their pay. They can deduct gear and jumps (training, you know) as an IC.

Also, if a DZ were to make them employees, it would most likely be peace work. Paid by the jump (or job) with taxes taken out. The DZ would have to match taxes which would mean lower per jump pay to begin with. The alternative would be at a busy DZ paying hourly and working their butts off.

Todd

I am not totally useless, I can be used as a bad example.

[quade 4]

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Most instructors don't want taxes taken out of their pay. They can deduct gear and jumps (training, you know) as an IC.

And what about that would change if they were employees?

They would still not -want- taxes taken out.

And they could still deduct their gear, training and currency jumps.

quade -
The World's Most Boring Skydiver

[tspillers 0]

Yes, but limitations on their deductions are more stringent if they are an employee. I forget the percentage that it worked out to. Over simplified but as an IC that money comes straight off of the income. As an employee there is a multiplier that comes into play. It is almost like the difference of an exemption or a dedcution with limitations.

Before I was a DZO, I had a skydiving services business out of my home. That way I could even deduct my mileage. You can't do that as an employee because the mileage would start from you place of employment. There are several issues just like that. If I were back in that boat, I would want to be an IC. Unless I could find a DZ to pay me $80-100k salary of cours

I am not totally useless, I can be used as a bad example.

[Nightingale 0]

what is your policy if one of your employees becomes injured on the job through no fault of their own?

[tspillers 0]

Well, the only employees I have work manifest. In which case all we have is workman's comp. We haven't found a viable insurance option.

For the IC's (the rest of the staff), unfortunately they would be in the same boat I was in several years ago when I got stupid and broke my ankle (it was total fault of my own).

The good side is that none of my staff rely on skydiving as their living. They all have (as far as I know) outside insurance. My personal stand has been that once the student pulls (obviously doesn't apply to tandems), then I am on a fun jump and insurance will cover that. I have heard that becoming an issue with some companies as well though.

Todd

I am not totally useless, I can be used as a bad example.

[Nightingale 0]

I got curious and found some interesting info... Lawrocket and Tspillers, what are your takes on this??

~~~~~~~~~
While the ultimate classification is a matter of common law principles as to whether the worker is subject to the control and direction of another only as to the result of his work (an independent contractor) and not as to the means (an employee), the Internal Revenue Service has established factors it reviews to help determine the proper classification. The factors are:



1. Instructions to worker - A worker that is subject to instructions about when, where, and how to work is usually an employee.


Hmm... skydive instructors fit here. they're definitely subject to when and how, and some DZs even put restrictions on not working for other DZs.

2. Training - An employee is more likely to be subject to training than an independent contractor.


nope. skydivers get most of their certificates privately. but then again, so do college professors, and they're employees.


3. Integration into business operations - The greater the integration of a worker's services into the business, and thus the greater the business' control, tends to reflect an employment relationship.


skydive schools would not exist without their instructors. sounds pretty integrated to me.


4. Requirement that services be personally performed - The greater the flexibility given the worker to designate who may perform services favors an independent contractor classification.


skydive instructors must perform the work personally. they can't designate to someone else.

5. Hiring, supervising, and paying for a worker's assistants - If the business provides assistants to the worker, as opposed to the worker providing his or her own assistants, this may indicate that the worker is an employee.

one could argue that the DZ provides assistants, at least to the tandem instructors, in the way of packers.

6. Continuity of the relationship - Continuing, "on call" or similar long-term relationships, even if part-time, support classification as an employee.


most instructors are fairly permanent fixtures at the workplace. it isn't just a one time deal.

7. Setting the hours of work - An independent contractor usually sets his own work hours.

I'm guessing the DZ has a set schedule of who shows up when?? otherwise, nobody may show.

8. Requirement of full-time work - Independent contractors, unlike employees, do not normally work full-time for one business and are free to work when and for whom they choose.


most employees at the DZs I've been to work there full time.

9. Working on employer premises - If the business requires work to be performed at its offices, this indicates control over the worker (if the work could be done elsewhere).

work has to be performed at the dropzone.

10. Setting the order or sequence of work - Independent contractors generally enjoy greater freedom to follow their own pattern of work routines and schedules.

once at work, seems like the school office coordinates who jumps with who and when, not the instructor.

11. Requiring oral or written reports - Regularly required oral or written reports usually reflect an employee relationship.

this could vary from DZ to DZ

12. Paying worker by hour, week, or month - Employees are normally paid hourly, weekly, or monthly, while independent contractors are usually paid by the job or on a straight commission basis.

most get paid per jump

13. Payment of worker's business and/or traveling expenses - This factor reflects a business' effort to control its expenses through an employee.

I don't think DZs pay transportation costs, but they do provide the plane, so this could be iffy.

14. Furnishing worker's tools and materials - Employees are normally provided necessary work tools and materials, independent contractors tend to furnish their own. However, it is more common for a trade worker who is an employee to use his own tools than for an office worker who is an employee to provide his own office equipment.

Jumpmasters would probably be considered trade employees, and TMs, from what I've seen, tend to jump school owned rigs.

15. Significant investment by worker - Employees are normally provided the requisite facilities by their employer, while independent contractors usually invest in and maintain their own work facilities.

facilities are provided by school/DZO

16. Working for more than one business at a time - Employees usually work for only one company, while independent contractors frequently work for more than one business.

most instructors work at one DZ, some DZs require them to work exclusively

17. Firm's right to discharge worker - An employer exercises control over its employee through the threat of dismissal, while independent contractors normally cannot be dismissed so long as they meet their contractual obligations.

DZs can definitely fire instructors

18. Worker's right to terminate relationship- Employees are usually entitled to quit at their leisure, while independent contractors generally must fulfill contractual obligations.

as far as I can tell, instructors can quit when they like

19. Availability of worker's services to the general public - If the worker usually makes himself or herself available to the public to perform services, he or she is more likely an independent contractor.

the instructors services are typically available to that DZ only.


The penalties for mis-classification under tax and other laws are severe and may, in some cases, create personal liability for the individual that has established the employment relationship or was a responsible party for deducting and withholding payroll taxes.

another interesting note: if an independent contractor is injured on the job in a state where he is not covered by workers' compensation, he would not be limited in the type of civil action he could file against the employer arising out of that injury. In states where independent contractors are covered by workers' compensation laws, the contractor is limited to the remedies provided under those laws.

[tspillers 0]

Most of these are a matter of practice and procedure established by the DZ.

Too lazy to quote.

1. Not really, intructors are given standards, but not told they must do this exact dril and technique to teach a given skill. (ex. put on creeper rather than floor and push them around to teach forward movement).

3. This could be argued. If profit sharing was offered it would lean towards employee. I think this points more toward the control of the business. If there weren't any framers contracted by a Home Builder than houses wouldn't be built either.

4. I definitely see a problem here. We have instructors pass students to another instructor for many reasons. (not packed, want to fun jump, you are better matched fall rate, you are better at teaching this item).

This one could definitely vary from DZ to DZ.

5. This one could be an issue for tandems. The other instructors pay the packers directly. The way around it would be to pay the TM more, but then charge for gear rent and pack. I may consider making this change.

6. I think this isn't a big problem either. They do good work so you continue to contract them. Just like we use the same lawer over and over.

7. I mentioned this one before. We are open at these times. We also take it a step further at times and tell them when students will be here.

8. This one would hit the DZ's that require people to work only for them. My staff generally work here, but several of them have also worked for other nearby DZ's from time to time.

9. This could be argued at many DZ's on the fact that the DZ doesn't own the airport. You could get silly and say the DZ doesn't own the air. We also allow the instructors to train people during the week at home. It hasn't been done lately, but several instructors have used the meeting room at the FBO.

10. Not really, the instructor gets with the student and then they determine when. We actually take it a step further with coaches. Our head coach determines who jumps with who. Mostly rotation, but fall rates and stronger teaching skills also comes into play.

13. I don't think the plane in this instance would count as transportation since intended departure and arrival are the same place.

14. This is close to 5. If TM's were paid more and then charge gear rental.

15. This could go back to the training at home or the use of the FBO's facilities. It could also be argued that the plane isn't provide. Again, pay the instructor more, but charge them for their slot.

16. This one could get DZ that require a non compete. I have always tried to just make it a place they want to be.

17. This isn't an issue. For an IC you just don't contract them any more. Ever hear of an insrtuctor trying to get unemployment. (From a DZ).

18. Would be difficult for an instructor to quit in the middle of a jump. At least a little harder than an employee picking up their things and walking out.

19. Here again this goes back to allowing staff to work at other DZ's (and hoping they don't desire to often)

I am not sure if IC's are covered under TX workman's comp. I will have to check.

This was good, I may change a couple of practices.

I would also be curious to see if many instructors wanted to be employees. I have always felt the drawbacks outweigh any benfits.

I think some DZ's more than others would be in danger of misclassifying thier workforce.

Todd

I am not totally useless, I can be used as a bad example.

[tspillers 0]

I wonder if this is more than lawrocket wanted

I am not totally useless, I can be used as a bad example.

[TomAiello 26]

Have you considered legality of parachuting in National Parks?

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[aeromobile 0]

Quote

I'm looking at drafting some skydiving-related legal articles to put up here. I've got a couple of ideas, and a couple that have been proposed by others. Things like:

1) Analysis of the skydiving waiver

3) Liability exposure for instructors


I want more suggestions regarding this stuff. What questions do you have regarding general skydiving stuff?

Give me some good ideas for articles. Or even bad ideas.

On the same line, liability exposure for pilots, mechanics, packers....are they covered under the skydiving waiver.